IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

REPORTABLE

APPEAL CASE NO: A135/2024
CASE NUMBER: 13636/2020

In the matter between

SIPHOSETHU MKETO APPELLANT

and

PASSENGER RAIL AGENCY OF SOUTH AFRICA RESPONDENT


JUDGMENT

Date of hearing: 22 January 2025
Date of judgment: 24 February 2025 - Electronically delivered
Coram: Erasmus J, Lekhuleni J, Bhoopchand AJ

BHOOPCHAND AJ:

1. This appeal against the whole judgment of the trial of 6 October 2023 is heard
due to leave being granted on petition by the Supreme Court of Appeal on 27
March 2024. The notice of appeal was lodged on 25 April 2024. The appeal
lies against the question of liability or the merits of the Appellant’s claim

against the Respondent.1 The Appellant testified and then closed her case.
The Respondent closed its case without leading any witnesses. The court a
quo dismissed the Appellant’s case and declined leave to appeal. The
Appellant petitioned the Supreme Court of Appeal with whose le ave this Full
Bench hears this appeal.

2. The Appellant, a 27 -year-old female, was a passenger on a train on 5
February 2020 travelling between Cape Town and Elsies River. The incident
that led to her allegedly jumping off the train and sustaining serious injuries
began at the Cape Town station and ended after the train departed Goodwood
station. She jumped through the open doors of the ca rriage after three
assailants stabbed the commuter standing next to her. The assailants had
boarded the train at the Cape Town station and had been boisterous
throughout the journey. The Appellant sustained injuries after jumping from the
train.

3. The App ellant appeals against her alleged failure to prove a passenger -
transporter relationship and that her injuries occurred in an incident on 5
February 2020 . The Appellant has raised fifteen grounds of appeal , which
amount to twenty -one when the sub-sections of the grounds of appeal are
included.

THE PLEADINGS

4. The Appellant’s particulars of claim were filed on 25 September 2020. She
alleged that she was a passenger on a train operated by the Respondent. She
was attacked between Goodwood and Vasco stations by unknown assailants.
In the ensuing panic and to avoid being assaulted , she jumped out of the train
from the open doors of the carriage.

5. The Appellant alleged that the incident that resulted in her being injured was
caused by the neglige nce of the Respondent and/ or its employees. She raised

1 The parties shall be cited as they are in this appeal . References to the Respondent include s
its employees.
three grounds of negligence, namely that the Respondent failed to ensure the
safety of the passengers on the train by failing to deploy security guards at the
station or on the train. The Respondent allowed the train to move while the
doors of the carriage where the Appellant was travelling were open . The
Respondent failed to avoid the incident when, by exercising reasonable care
and diligence, it could and should have done so.

6. The Appellant sustained a skull fracture, cerebral contusion and blunt trauma
to her right shoulder, back, and neck.

7. In its amended plea , the Respondent denied that the Appellant was a fare-
paying passenger on board a commuter train it operated on 5 February 2020 .
The Respondent denied knowledge of the alleged incident . The Respondent
pleaded that if the Court found that the incident did occur , the Appellant was
the sole cause of the incident. She was negligent in one of six ways . She
failed to avoid the incident when, by exercising reasonable skill and care, she
could and should have done so. She jumped from the moving train of her own
volition . She failed to keep a proper lookout when she jumped from the
moving train . She jumped from the moving train when it was inopportune,
dangerous and unsafe. She failed to disembark the train carriage when it was
safe under the prevailing circumstances . As the evidence may prove , she
was also negligent by such acts of commission or omission .

8. The Respondent further pleaded that if the Court found the incident occurred
and the Respondent was n egligent , then it denied that such negligence
contributed causally to the incident. As a further alternative, the Respondent
pleaded an apportionment of damages.

9. Respondent filed an extensive request for trial particulars. The relevant issues
canvassed included questions about whether the Appellant had a valid train
ticket, details of h er encounter with the assailants, the train's open doors , her
jumping out of the train, and whether she received attention from anyone after
jumping out. The Respondent further asked about other passengers on the
train, the Appellant’s seating position relative to the doors, whether any other
commuters had been attacked or assaulted, whether the Appellant was fearful
before she jumped, the number of other commuters who were robbed ,
whether anything was stolen from the Appellant, whether the passengers
attempted to stop the assailants , and whether the Appellant reported the
incident to anyone including the South African Police Service (SAPS) . The
Respondent asked about the Appellant's allegations regarding the deployment
of security guards. Based on the number of assailants, the Respondents
enquired as to how many security guards would have been required to
prevent the attack and whether the assailants would have also attacked the
security guards . The Respon dent also requested particulars on how the
Appellant reached the hospital .

10. The Appellant replied to the Respondent’s request for particulars. She
indicated that a copy of the ticket had been provided to the Respondent. She
said the doors were open after the train left a station before Goodwood. She
did not remember where exactly she fell. Unknown persons assisted her . A
few passengers were on the train, and she was seated near the doors. She
stated that the incident was reported to the SAPS to the best of her
knowledge . She was hospitalised. There were three assailants in her
carriage. On the issue of the security guards , the Appellant replied that it was
a matter of evidence and argument.

11. The purpose of permitting further particulars for trial is to prevent surprise, that
the party is told with greater precision what the other party is going to prove to
enable his opponent to prepare his case to combat counter -allegations, but
not to tie the other party down and limit its case unfairly. The purpose of
particulars for trial is not to elicit evidence or information which will emerge on
cross -examination .

THE EVIDENCE

12. The Appellant's Counsel informed the Court a quo that their case is
summarised in paragraph 3 of the particulars of the claim.2 The Appellant
testified that she travelled on the train departing the Cape Town station at
19h50 . She had a single ticket. She boarded the first-class carriage at the
back of the train. There were about ten commuters in the carriage she was
travelling in. She sat with a person going to Kr aaifontein (“the companion ”).
Five persons boarded the train at Cape Town station, three in their carriage
(“the assailants”) and two in another carriage . They were smoking drugs. They
asked for cigarettes and a lighter from her companion and beg an smoking on
the train .

13. The assailants began misbehaving as the train departed Cape Town station .
They banged on doors and scared people. She was scared and spoke to her
companion. The plan was for her to get off at his station in Kraaifontein. She
attempted to get off the train at Goodwood with others who had alighted. Her
companion grabbed her bag s and assured her she was safe with him. The
train doors were not closing. She decided to stand with her companion next to
the door. The assailants began a fight with the commuter standing next to her.
They wanted the commuter’s phone , and when the commuter was reluctant to
hand it over , one of the assailants pulled out a huge knife from his trouser
pocket . The assailant holding the knife dangled it in front of the commuter’s
face. The commuter , unperturbed, continued arguing with the assailant. The
Appellant panicked when the assailant tried to stab the commuter . She
wanted to escape them as she feared they would stab her . She jumped off the
train as the assailant stabbed the commuter.

14. She lost consciousness. The noise from a passing train awoke her. She
noticed that she had blood on her face. She had difficulty getting up. She fell
often until she got to Voortrekker Road. She was taken to the police station
and not the hospital. The police tried to ask her questions , but she could not
answer as she remained terrified. She was shaking and crying. The police
called the ambulance. She was taken to Elsies River Hospital . She awoke in

2 Paragraph 3 of the particulars of claim is summarised in paragraph XXX of this judgment
Tygerberg Hospital after that. She suffered a head injury with concussion and
a back injury.

15. On cross -examination , the Appellant was asked a bout her memory losses.
She volunteered that she was schizophrenic , but she could recall the events
of the day. She was asked how long she had travelled the route and whether
she knew the stations on that line. The Appellant confirmed she knew the
names of the stations on that line. She was scared when she got onto the
train because of the three assailants in her carriage. They got onto the train at
Cape Town statio n. The assailants did not ask her for her cell phone .

16. It was put to the Appellant that she could have disembarked the train at any of
the stations before Goodwood. The Appellant testified that she wanted to
leave the train at every station before Goodwood. No other passenger got off
the train at these station s; hence, she did not , as she felt unsafe . She would
be on her own at these stations. She left the train at Goodwood station as five
passengers left, and she would have their company there . She would then
take a taxi to Elsies River. Her companion had her bags , told her she was safe
with him , and persuaded her to return to the train.

17. The Appellant agreed she could have left the train at any station . As there
were other passengers on the train, she felt safe, but when the assailants sat
next to them, she did not feel safe any longer. Respondent’s Counsel put to
her that she could have alighted at any station or moved to another carriage.
The Appellan t replied that she could not do so as the other carriages were
empty. She testified that there were only people in the carriage she had
entered , and if she left, she feared that the assailants would follow her . It was
put to her that she was not attacked , nor was there any threat uttered to her.
Her testimony was that the assailants did not come to her but had stabbed
someone next to her.

18. The Appellant was taken through paragraph 3 of her particulars of claim. In
the particulars, the Appellant alleged that she was attacked. It was put to the
Appellant that her testimony was that she was not attacked. The Appellant
replied that she heard them talking about her being next. They said they were
going to her because they saw her hiding her phone. It was put to her that this
was new testimony. She testified in chief that she hid her phone at Cape
Town station when she saw them enter. The following sentence in paragraph
3 was put to her, namely that in the ensuing panic and to avoid being
assaulted , she jumped off the train from the open doors of the carriage. She
agreed that it was correct.

19. The Appellant was referred to the request and reply for trial particulars . In her
reply , she provided information to suggest she was not long o n the train
before the assailant approached her . She agreed that the answer was
incorrect. She was asked about the open train doors in the request for trial
particulars . She answered that she was unsure as to whether the doors were
kept open or whether they had malfunctioned. She stated that she noticed the
doors were open after the train had left Goodwood . The doors did not close.
She did not look at the doors after they left Cape Town station and only saw
they were open after she returned to the train at Goodwood station. She
testified that she was most scared when she saw the knife.

20. Appellant testified that she jumped out of the train willingly. The answer to a
further trial particular stated that the doors were open from when the train left
a station before Goodwood. She testified that she feared the assailants were
going to get to her and stab her as well.

21. The Court a quo asked questions. The Court referred to her te stimony , where
she said she heard the assailants saying she was next, and she decided to
hide her cell phone . She testified that she hid her phone at Cape Town station.
The assailants said that she would be next in Goodwood. She testified that
her companion pulled her jacket when she was jumping off. Arising from the
Court’s questions, the Appellant testified that she had already known she
might be attacked at Cape Town station when she hid her cell phone . The
Appellant closed her case , and the Defendant did the same.

THE COURT A QUO’S JUDGMENT

22. The Court a quo stated that it was called upon to decide whether the injuries
sustained by the Appellant were wrongfully and negligently caused by the
Respondent , who should be ordered to compensate the Appellant at a later
stage. The Court stated that the starting point would be whether there was
any contractual relationship between the parties , as the Appellant was said to
have been a fee-paying passenger , before it proceeded to the second enquiry
on whether there was an alleged wrongful and negligent act by the
Respondent .

23. The Court found that the Appellant did not produce a train ticket esta blishing a
relationship between the Appellant and the Respondent. There was no
evidence led that the Appellant was a passenger in the Defendant’s train on
the alleged day. The Court was troubled by the Appellant’s testimony about
the initial stage of her j ourney. She was aware of the suspicious men who had
approached her and her companion at the Cape Town station. She
nevertheless boarded the train . Her companion always assuaged her
heightened fear during the journey.

24. The Court found that even though the Appellant was a vulnerable female, and
she jumped off a moving train, no one cared to investigate what happened to
her. Her companion, who assur ed her of her safety, did not get off at the next
station to check what had happened to her.

25. The Court found that the Appellant had no evidence to prove that a couple
assisted her, that the incident was reported at Elsies River Police Station, that
an ambulance conveyed her to Elsies River Hospital, and that she was later at
Tygerberg Hospital.

26. The Court found that the gravity of the alleged incident was such that t he
Appellant would have put evidence before the Court that she was a fee -paying
passenger on this unknown train. She could have provided the police report,
ambulance report, and medical records, which would have assisted in
establishing a relationship betw een the Appellant and the Respondent .

27. The Appellant’s damages claim was premised on the basis that the
Respondent had a legal duty to protect its passengers from suffering physical
harm when using their transport services. In circumstances where the
Appellant had failed dismally to prove that she was a passenger in the
unknown train, the Court a quo concluded that no contractual relationship
existed between them.

28. The Court requested further argument from the parties. That directive is not
before this Court. The Court a quo rejected the Appellant’s contention that
although she did not tender direct medical evidence regarding her admission
to the hospitals, it appeared from the witness bundle , which was handed into
the Court. However, the Appellant could not testify regarding the contents of
those notes as they were hearsay. The Court categorically denied that the
Appellant had provided a witness bundle. The witness was only referred to the
pleadings bundle.

29. The Court reasoned that for liability to arise, there should be a c ausal link
between the Respondent’s conduct and the Appellant’s loss. Although the
Appellant pleaded in her particulars of claim and later testified that she was a
fee-paying passenger on board a commuter train, the Respondent had denied
that in the plea and had denied knowledge of the incident that resulted in the
Appellant being injured. The Respondent denied that it owed a duty of care to
the Appellant. Without an established relationship, no liability arose. The Court
then stated that a causal link between the Appellant and Respondent is a
secondary enquiry.

30. The Court stated that even if it were to assume that the Appellant was a
passenger in Respondent’s train , no imminent harm or threat justified her
jumping off the moving train. If the Appellant failed to overcome the first
hurdle, i.e., the passenger -transport er relationship , the Court c ould not
proceed to determine causation. The injuries the Appellant testified to and the
injuries pleaded in the particulars are far apart. There is a huge suspicion as
to whether the injuries sustained by the Appellant arose fr om a train incident.

31. The Court reminded itself of the dictum in Mashong wa3 about courts playing
an active oversight role in matters that come before them and that a way must
be found to impose limitations on the wrongdoer ’s liability. The imputation of
liability to the wrongdoer depends on whether the harmful conduct is closely
or remotely connected. The establishment of proximity of the wrongful conduct
to the harm is more likely to impute liability to the wrongdoer provided policy
considerations are based on the norms and values of the Constitution, and
justice also points to the reasonableness of imputing liability to the Defendant.

32. The Court concluded that th e Appellant failed to demonstrate a connection
between herself and the Respondent on a balance of probability . In a society
riddled with fraud and corruption, it is not open for the Court to be swayed by
a mere say-so of the Appellant that she was in Respondent’s train without a
minuscule proof that she was indeed a commuter . The Court found that the
Appellant fail ed to prove her case on the merits and dismissed the claim with
costs .

GROUND S OF APPEAL

33. The Appellant raised fifteen grounds of appeal, with the first two being
decidedly rel evant. The Appellant alleged that the Court erred in finding no
contractual relationship between the Appellant and Respondent. She testified
that she was a fee-paying passenger. She asked rhetorically how she boarded
the train if she did not have a ticket. Her version was not challenged. Section
16 of the Civil Proceedings Evidence Act provides that judgment may be given
in any civil proceedings on the evidence of a single , competent and credible
witness. The evidence was not challenged under cross -examinat ion.

34. The Appellant’s second ground of appeal is that the Court a quo failed to
apply the elements of a delict relevant to this matter. The Court also failed to

3 Mashongwa v PRASA (CCT03/15) [2015] ZACC 36; 2016 (2) BCLR 204 (CC); 2016 (3) SA
528 (CC) (26 November 2015) (“ Mashongwa ”)
deal directly with the Respondent’s legal duty regarding commuters, security
guards, and open doors.

ANALYSIS

35. It is apparent from an evaluation of the pleadings and the evidence that the
Court a quo erred and misdirected itself on the interpretation of the evidence,
the application of the law to the facts, and for making findings that were
neither pleaded, led in evidence or argued by the parties.

36. The Respondent did not allege or argue that the Appe llant’s claim was
fraudulent , nor did it raise any issue about whether anyone , including the
companion she befriended, bothered to check on the Appellant after the
incident .

37. The Appellant testified that she was a fee-paying passenger . She boarded the
train at Cape Town Station at 19h50 on 5 February 2020. She had a single
ticket and travelled in a first -class carriage. She was travelling from Cape
Town to Elsies River. In he r reply to the Respondent’s request for trial
particulars, the Appellant stated that she had provided the Respondent with a
copy of her ticket. The Respondent did not cross -examine the Appellant on
her evidence that she was a fare -paying passenger on the train. If a point in
dispute is left unchallenged in cross -examination , the party calling the witness
is entitled to assume that the unchallenged testimony is accepted as correct.4
The ticket established the contractual nexus between the Appellant and the
Respondent . The Court a quo erred when it found that the Appellant had not
established a connection between herself and the Respondent.

38. As the Court a quo decided the case on the failure of the Appellant to prove a
contractual relationship between her and the Respondent, it did not conduct
the necessary enquiry to determine whether the Appellant had established the
elements of the delict to render the Respondent liable for her damages. As the

4 President of the Republic of South Africa and Others v South African Rugby Football Union
and Others [1999] ZACC 9 , 1999 (4) SA 147 (CC), 1999 (7) BCLR 725 (CC)
Court a quo erred in the latter respect, this Court is permitted to reconsider the
evidence.

39. The five elements of a delict are (1) conduct; (2) which is wrongful and
unlawful; (3) committed either negligently or intentionally (fault); (4) which
caused the harm or loss complained of (causation); and (5) resulted in
actionable harm, loss or damage.5

40. Appellant relied upon two omissions as the conduct she attributed to the
Respondent th at led to the harm she suffered. Her allegations about
wrongfulness had to be inferred from her grounds of negligence as
particularised in her particulars of claim . They are that the Respondent failed
to deploy security guards at the station and on the train and allowed the train
to move whilst the carriage do ors remained open. Nor did the Appellant
suggest a basis for determining causation , which also has to be inferred from
the particulars of the claim. A litigant seeking delictual damages risks being
non-suited if the particulars do not address each element to establish delictual
liability , or lead evidence to addres s them.

41. The Appellant did not lead any evidence relating to the deployment of security
guards on the train. She was not even asked in examination -in-chief as to
whether there were any security guards at the station or on the train to trigger
an onus on the Respondent to answer this allegation. In the exchange of
further particulars for trial , the Respondent directed questions about the
Appellant’s allegations in her particulars of claim concerning the deployment
of security guards on the train. The Appellant replied that they were matters
for evidence and argument. The latter response , combined with the failure of
the Appellant to place any evidence about this alleged omission on the part of
the Respondent, means that the Respondent was entitled to assume that the
Appellant did not intend to pursue this particular conduct of the Respondent
and that has to be the end of that ground of negligence.


5 Neethling, Potgieter, Visser, Law of Delict, 6th ed, page 25
42. The Appellant is then confined to the Respondent's failure to close the
carriage door she travelled in. The Appellant’s case was that she was a
passenger on the train . Unknown assailants attacked her . “In the ensui ng
panic and to avoid being assaulted, she jumped out of the train from the open
doors of the carriage.” The open doors of the carriage served as an escape
route from an impending attack , even if she perceived it as such. Her
testimony was that the assaila nts were in the process of stabbing a fellow
commuter and had indicated that she would be next . She jumped from the
moving train .

43. The Appellant wanted the Court to find that by providing an escape route from
an impending attack by assailants , the Respondent’s conduct was wrongful
and negligent and caused her injuries. At first blush , the proposition as a
whole is conceptually unsound . Had the Appellant pursued her case against
the Respondent for failing to deploy security guards to ensure her safety , it
would have been easier to correlate the conduct as an omission to the harm
suffered. The open door was also not directly causative of the Appellant’s loss.

44. This court is cognisant of the whole line of cases involving commuters'
mishaps with open doors of train carriages . The peculiar facts of this case,
i.e., where the Appellant took the option of jumping off a moving train, are
distinguishable from the other train cases. In Mashongwa , the Plaintiff was
thrown out of the train by criminals.6 In Maobelo , the Plaintiff fell out of a
moving train as it changed rails, and fellow commuters pushed the Plaintiff
out.7 In Mokoena , the commuter fell as others pushed her while making their
way out of the train.8 In Davids , the movement of the train and the jostling of
other passengers carried the Plaintiff to the open door of the moving train.
Another commuter clung onto the Plaintiff, and they both fell off the train.9 In
Seti, the Plaintiff fell when he attempted to bo ard a train departing with its

6 Mashongwa supra
7 Passenger Rail Agency of South Africa v Moabelo (1082/2016) [2017] ZASCA 144 (2 October
2017)
8 Passenger Rail Agency of South Africa v Mokoena (5038/2020; 14289/2014) [2021]
ZAGPJHC 650 (26 August 2021)
9 Davids v Passenger Rail Agency of South Africa (9794/2019) [2023] ZAWCHC 174 (24
November 2023)
carriage doors open.10 In the latter cases, including many others that appear
in a search of the cases, the Courts found the Respondent liable for the
damages claimed by the Plaintiffs. Appellant’s Counsel could not find a ca se
where the Claimant jumped off a moving train. Neither could this Court. This
Court shall examine the leading case in adjudicating a delictual claim involving
commuters who suffer harm from travelling in trains with open carriage doors
to determine wheth er the principles evolved and applied there , find application
in this case .

45. Mashongwa specifically mentions the situation encountered in this case,
although it deals with a commuter thrown out of a train. In paragraph 17, it
says:

“When acts of violence are perpetrated while a train is in motion, commuters
are virtually trapped. Confinement to compartments places passengers
almost entirely under the control and mercy of PRASA. So does the fact of
the train being in motion limit th e ability to simply alight at will. Passengers
jump out of a moving train to escape an attack by violent criminals, at the
risk of breaking their limbs or losing their lives. And the reality is that violent
crime is not a rarity on our trains.”

WRONGFUL NESS

46. The enquiry regarding wrongfulness is no longer contentious .

“The wrongfulness enquiry focuses on the conduct and goes to whether the
policy and legal convictions of the community, constitutionally understood,
regard it as acceptable. It is based on the duty not to cause harm – indeed to
respect rights – and questi ons the reasonableness of imposing liability.”11

47. The Constitutional Court elaborated further:

10 Seti v South African Rail Commuter Corporation Ltd (10026/2009) [2013] ZAWCHC 109 (8
August 2 013) (“Seti”)
11 Loureiro and Others v Imvula Quality Protection (Pty) Ltd [2014] ZACC 4 ; 2014 (3) SA 394
(CC); 2014 (5) BCLR 511 (CC) (Loureiro) at para 53

“Wrongfulness is an element of delictual liability. It functions to determine
whether the infliction of culpably caused harm demands the imposition of
liability or, conversely, whether “the social, economic and other costs are just
too high to justify the use of the law of delict for the resolut ion of the particular
issue”. Wrongfulness typically acts as a brake on liability, particularly in areas
of the law of delict where it is undesirable and overly burdensome to impose
liability.”12

48. When it comes to conduct:

“Wrongfulness is generally unc ontentious in cases of positive conduct that
harms the person or property of another. Conduct of this kind is prima facie
wrongful.”13

49. An omission is wrongful when it evokes moral indignation and the legal
convictions of the community require that the omission be regarded as
wrongful”.14 In Mashongw a, Mogoeng CJ explained that the principles relating
to positive conduct remain true whether one is dealing with positive conduct,
such as an assault or the negligent driving of a motor vehicle, or negative
conduct, where there is a pre -existing duty, such as the failure to provide
safety equipment in a factory or to protect a vulnerable person from harm. It
also applies to PRASA, a public carrier that owes a legal duty to its
passengers to ensure that reasonable measures are in place to provide for
the safety of rail commuters and pro tect them from suffering physical harm
while using its transport services.15 The duty stems from the contract between

12 Country Cloud Trading CC v MEC Department of Infrastructure Development [2014] ZACC
28; 2015 (1) SA 1 (CC) (“Country Cloud”), paras 20 -21
13 Country Cloud, supra at para 22
14 Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 597A -B, Carmichele v Minister of S afety
and Security (Centre for Applied Legal Studies Intervening) [2001] ZACC 22 ; 2001 (4) SA 938 (CC);
2001 (10) BCLR 995 (CC), Minister of Safety and Security v Van Duivenboden [2002] ZASCA 79 ;
[2002] 3 All SA 741 (SCA),
15 Rail Commuters Action Group v Transnet Ltd t/a Metrorail (CCT 56/03) [2004] ZACC 20; 2005
(2) SA 359 (CC); 2005 (4) BCLR 301 (CC) (26 November 2004)
itself and its passengers or its public law obligations. A breach of that duty is
wrongful in the delictual sense and could attract liabil ity for damages.16

50. Mashongwa is a milestone decision as it developed the element of
wrongfulness in the context of omissions to impute the Respondent’s public
duty to protect its commuters to a private law legal duty to ensure the safety of
its commuters and prevent harm to them. A breach of that duty would amount
to wrongfulness.

51. The Appellant’s case is premised upon the Respondent’s failure to ensure the
safety of passengers, including herself, on the train . This Court accepts that
the Respondent’s failure to ensure her safety from unknown assailants on the
train, which led her to jump out of its open doors, is wrongful. She still ha d to
prove the elements of negligence and causation.

NEGLIGENCE

52. Would a reasonable person in PRASA’s position have reasonably foreseen
harm befalling the Appellant due to the open doors? If so, would the person
have taken reasonable steps to prevent harm to the Appellant? If the person
would, did PRASA take reasonable steps to avert the foreseeable harm that
ultimately occurred?17 The standard employed in the circumstances of this
case would be that of the reasonable organ of the state. An organ of state
must present information to the court to enable it to a ssess the
reasonableness of the steps taken . The Respondent , in this case, made no
effort to comply with either of the grounds of negligence raised by the
Appellant.

The failure to close the doors of the carriage


16 Mashongwa at paras 18 -20
17 Kruger v Coetzee 1966 (2) SA 428 at 430E -F: For the purposes of liability culpa arises if —
(a) a diligens paterfamilias in the position of the defendant — (i) would foresee the reasonable
possibility of his conduct injuring another in his person or property and causing him patrimonial loss;
and (ii)would take reasonable steps to guard against such occurrence; and (b) the defendant failed
to take such steps.”
53. The Appellant testified that the carriage remained open from at least
Goodwood Station . She disembarked the train at Goodwood but was
persuaded by her companion to return. They stood close to the open doors ,
her companion behind her and another commuter st anding alongside her
when the assailants attacked the fellow commuter. They indicated that she
was their next target , and as they stabbed the fellow commuter, she jumped
out of the moving train.

54. Metrorail underscored the need to keep coach doors closed when a train is in
motion.18 The Appellant jumped out of the moving train when faced with
imminent danger . Had the train doors been closed, she would have had to
consider another escape route , of which the options belo ng to the realm of
speculation .

55. The Respondent could not have foreseen that a commuter would jump out of
an open door in a moving train to escape the risk of an impending attack . The
incident was ca used by a known source of danger, i.e., the open doors , but
caused in such a way the Respondent could not have foreseen . Mashongwa
relied on the English case of Hughes v Lord Advocate19, which addressed a
situation where the harm that occurred was unexpected. N onetheless , in that
case, the Court held the Defendant liable because the harm that materialised
was of the same general nature as the reasonably foreseeable harm . The
doctrine of foreseeability concerning the remoteness of damage does not
require foresight regardin g the exact nature and extent of the damage. It
suffices if the person sought to be held liable could reasonably have foreseen
the general nature of the harm that might, as a result of their conduct, befall
some one exposed to a risk of harm from such conduct.20

56. The Respondent could have foreseen a commuter accidentally falling or
slipping off a train through open carriage doors , but it could not have foreseen
a commuter jumping through open doors to avoid an impendi ng attack.

18 Metrorail , supra, at paras 84,102,106
19 Hughes v Lord Advocate [1963] AC 837 (HL); 1 ALL ER 705 (HL) ,
20 Mashongwa at paras 53 -59
Jumping out of the train to avoid a knife attack is equivalent , as was reasoned
in Mashongwa , to the facts under lying the English case of Hughes v Lord
Advocate. Two boys climbed down a Post Office manhole at night. One of
them, carrying a paraffin l amp, tripped while climbing out of the manhole. The
paraffin spilt, caught fire and an explo sion. Landing out of a moving train due
to an accidental fall at the risk of limb or life is not materially different from
jumping out whilst escaping criminal activity.21 The Appellant had thus
established negligence.

CAUSATION:

57. In this enquiry, the question that arises is whether the harm would have
nevertheless ensued, even if the omission had not occurred . The Appellant
would not have jumped from the moving train if the doors were closed . The
application of the ‘but-for’ test22 is a matter of common sense based on the
practical way in which the minds of ordinary people work against the
background of everyday life experiences. A Plaintiff has to establish that it is
more likely than not , but for the Defendant’s wrongful and negligent conduct,
her harm would not have ensued. The Appellant did not have to establish the
causal link with certainty.23

58. The Appellant testified that she was standing close to the open doors with a
fellow commuter beside her and her companion behind her. The assailants
and the fellow commuter began arguing, and one of the assailants began
stabbing him. The doors were open , and she decided to jump becaus e she
was scared they were going to stab her. This Court can infer that she w ould
not have taken the option if the doors had been closed and would not have
suffered the injuries she did. Factual causation has thus been established
under the ‘but -for’ test .


21 Mashongwa at para 62
22 International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700 E -H
23 Za v Smith and Another (20134/2014) [2015] ZASCA 75 ; 2015 (4) SA 574 (SCA) ; [2015] 3 All
SA 288 (SCA) (27 May 2015)
59. The imputation of liability to the wrongdoer depends on whether the harmful
conduct is too remotely connected to the harm caused or closely connected to
it. When proximity has been es tablished, liability ought to be imputed to the
wrongdoer provided policy considerations based on the norms and values of
our Constitution and justice also point to the reasonableness of imputing
liability to the defendant. As the apex Court reasoned in Mashongwa , the
negligent conduct of leaving the doors open is closely connected to the harm
suffered . The apex Court found that l egal causation ha d been established,
and it was reasonable, fair , and just that liability be imputed to the
Respondent. Similarly, this Court finds that the negligent conduct of the
Respondent in leaving the doors openis closely connected to the harm the
Appellant suffered.

THE RESPONDENTS DEFENCES

60. This Court accepts that the Appellant proved that the Respondent was
delictually liable for her damages that are yet to be proved or settled. The
Court will now consider the defences raised by the Respondent. The first has
many sub -categories. The Responde nt pleaded that the incident was caused
solely by the negligence of the Appellant . The Respondent pleaded that the
Appellant failed to avoid the incident by exercising reasonable skill and care,
she jumped from the moving train out of her own volition, she failed to keep a
proper lookout when she jumped from the moving train, she jumped from the
moving train when it was i nopportune, dangerous, and unsafe to do so , she
failed to disembark the train carriage when it was safe to do so under the
prevailing circumstances, or by such act of commission or omission as the
evidence may prove.

61. This Court will not give credence to defences couched in absurd terms.
Regrettably, certain grounds of negligence were extracted from the handbook
of motor vehicle accidents and transposed to a different genre of delict . It is
inconceivable how a commuter on a train can exercise reasonable skill, fail to
keep a proper lookout or jump when it is inopportune to do so .

62. In its written heads of argument , the Respondent concentrated on just two
aspects of its d efence raised in the plea : its contentions relating to the
Appellant’s failure to establish a contractual connection with the Respondent
and the omission complained of was not causally related to the damages
suffered by the Appellant. In the latter respect, the Respondent relied upon the
Appellant’s failure to prove legal causation and tendered the Appellant’s
departure from the train as o ne where she acted out of her own volition. In
oral argument, the Respondent pursued its defence that if the Court found it
liable , then the incident would have been caused partly through the
Appellant's negligence and partly through the Respondent's . The Respondent
motivated for a fifty -fifty apportionment.

63. This Court has addressed the contractual relationship between the Appellant
and the Respondent and need say no further about it. Although t he
Respondent relied solely on legal cau sation to support its argument that the
Appellant had not demonstrated a causal nexus between the omission and
the harm alleged. The passages relied upon in the cases cited by the
Respondent deal with factual causation alone.

64. The Respondent pleaded that the Appellant jumped out of the train of her own
volition. This defence was not pursued by the Respondent with any vigour
except for relying upon it to argue that the Appellant had not proved legal
causation. The onus rests on t he Respondent to establish the defence of
volenti non fit iniuria (A willing person who consents to the defendant’s act, in
the form of either a specific harmful act or an activity involving risk or harm,
cannot be wronged) . The Respondent had to allege and prove that the
Appellant had knowledge of the risk, appreciated the ambit of the risk, and
consented to the risk.24 The Respondent did n one in its pleadings or cross -
examination of the Appellant.


24 Harms, Amler’s Preced ents of Pleadings , Lawsa Vol 8 Part 1, Lexis Nexis Butterworths 2005
par 96), Seti v South African Rail Commuter Corporation Ltd (10026/2009) [2013] ZAWCHC 109 (8
August 2013) at para 23.
65. Concerning legal causation, the Respondent relied upon the passage in
Mashongwa , which affirmed that no legal system permits liability without
bounds and that liability ought to be imputed to the wrongdoer when proximity
is established.25 The Respondent failed to recognise that after stating these
principles , the Court in Mashongwa concluded that the Respondent’s failure to
keep the doors closed while the train was in motion is the kind of conduct that
ought to attract liability as the negligent conduct is closely connected to the
harm suffered .

66. This Court has been guided by the principles applied in Mashongwa to
determine whether this apparently novel way of suffering harm could be
extrapolated to the case where a commuter jumps out of the Respondent’s
train to evade an impending criminal attack. The analysis included the
element of causation , and the Court found that it could be applied to the
situation in casu , and found t hat it did and that the harm suffered by the
Appellant was closely connected to the Respondent .

67. On the question of apportionment of damages, the Respondent cross -
examined the Appellant on whether she should have boarded that train when
she was aware of the assailants at its point of departure from Cape Town
station and whether she should not have alighted the train at the various
stations the train stopped at. The Appellant testified that she had
contemplated leaving the train at each station, but no other commuter left the
train, and she was afraid of being all alone at those stations. The Appellant
testified that she was comforted by the presence of the compa nion she
befriended at the Cape Town station , who assured her and dissuaded her
from leaving the train at Goodwood station even after she had alighted . The
actual attack eventuated when the assailants pulled out the knife after
Goodwood station and began stabbing a fellow commuter. This Court has to
consider that the Appellant is a young woman travelling at night in
circumstances where travel options are limited , freedom of movement is at
risk from crim inal elements , and crime is rife . The suggestion that the

25 Mashongwa , supra at para 68
Appellant should not have boarded the train or disembarked at any of the
deserted stations before she jumped or moved to other unoccupied carriage s
is incongruent with the realities faced by women in this country. In the
premises, there are no grounds to apportion the damages .

CONCLUSIONS

68. The Appellant was a commuter travelling from Cape Town station to Elsies
River on the Respondent's train . Unknown assailants boarded the train at
Cape Town station and proceeded to make a nuisance of themselves
throughout the journey. The Appellant was scared and considered leaving the
train when it stopped at each station . Her companion dissuaded her from
doing so. After the train departed Goodwood station, the assailants became
embroiled in an argument with a fellow commuter standing next to her close to
the open door of the carriage . The Appellant jumped from the moving train
when the assailants stabbed the fellow commuter.

69. The Appellant suffered head and back injuries . She lodged a claim for
damages she suffered against the Respondent. She alleged that the
Respondent was negligent for failing to ensure that the train's doors were
closed whilst it was movi ng and for failing to provide adequate security on the
train. The Court a quo decided the case against the Appellant solely on the
basis that she failed to demonstrate a probable connection between herself
and the Respondent.

70. This Court found that the Court a quo had erred in finding that the Appellant
did not prove a contractual relationship between herself and the Respondent.
This Court found that the Appellant had established that she was a fare -
paying commuter on one of Respondent's trains . She had a ticket for a single
journey from the Cape Town station to the Elsies River. She had provided a
copy of the ticket to the Respondent . This Court also found that the Court a
quo misdirected itself by considering issues that were neither pleaded nor
argued by either side, especially whether the claim was fraudulent or not. The
Court a quo resisted engaging the delictual elements of the Appellant’s claim
to determine whether the Respondent was liable for the harm suffered by the
Appellant . In the premises, this Court was free to recon sider the evidence on
appeal.

71. This Court found that the Appellant failed to provide even the barest of
evidence to support her second ground of negligence relating to the absence
of security on the train. This meant that the Appellant could only rely on one
ground of negligence, namely that the Respondent had failed to close the
doors of the moving train.

72. This Court grappled with the circumstances that this case presented. A
commuter jumps out of a moving train through its open doors to escape an
impending knife attack. The Appellant wanted the Court to find the
Respond ent liable , in essence, for providing her with an escape path from the
impending attack. This Court pondered whether imputing liability in these
circumstances was conceptually sound .

73. This Court considered the facts of this case against the leading case on
claims against train operators . The apex Court contemplated this type of
situation, although the latter had considered and determined a case in which a
commuter was thrown off a train. The Respondent has been found to be liable
in many cases simila r to the leading case, but neither the Appellant’s Counsel
nor this Court could find a case on all fours where a Plaintiff ’s claim is
premised upon her jump ing off the moving train. This Court applied the
principles enunciated in the leading case to the facts of this case and
concluded that they applied just as equally to this situation.

74. This Court considered the defences raised by the Respondent, none of which
had any merit. It concluded that the Appellant had to prevail in its appeal of
the judgment a nd order of the Court below. The order of this Court will reflect
that.

75. The Appellant sought her costs in the Court a quo and the costs of the appeal.
She sought Counsel’s fees on the B scale. The cost order sought is
reasonable and shall be reflected in the following order.

ORDER

1. The appeal is upheld ,

2. The order of the Court a quo is set aside,

3. The Respondent is liable for the damages the Appellant may prove,

4. The Respondent is to pay the costs of the Appellant in the Court a quo as well
as the costs of the appeal

5. Counsel’s fees are to be taxed or agreed on the B scale.


________________________
Bhoopchand AJ

I agree

________________________
Lekhuleni J

I agree, and it is so ordered .

________________________
Erasmus J


Judgment was handed down and delivered to the parties by e -mail on 24 February
2025

Appellant’s Counsel: E Benade
Instructed by Adendorff Attorneys
Respondent’s Counsel: M Salie SC, M Nduli
Instructed by Mncedisi Ndlovu & Sedumedi Attorneys